Citation NR: 9729319
Decision Date: 08/25/97 Archive Date: 08/29/97
DOCKET NO. 96-10 626 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUES
1. Entitlement to service connection post-traumatic stress
disorder (PTSD).
2. Entitlement to service connection for essential
hypertension
3. Entitlement to service connection for peptic ulcer.
4. Entitlement to service connection for alcoholism.
REPRESENTATION
Appellant represented by: AMVETS
ATTORNEY FOR THE BOARD
Christopher B. Moran, Counsel
INTRODUCTION
The veteran served on active duty from June 1963 to October
1966.
The Board of Veterans’ Appeals (Board) notes that a review of
the record shows that the veteran’s initial Department of
Veterans Affairs (VA) form 526, Application for Compensation
or Pension received on September 26, 1990 solely presented a
claim for PTSD. An original regional office (RO) rating
decision dated in October 1991 denied entitlement to service
connection for PTSD. Also, it was essentially noted that
although not specifically claimed by the veteran the RO also
considered and denied entitlement to service connection for
hypertension, peptic ulcer, gout, hepatitis, hiatal hernia
and alcoholism. In January 1992, the veteran was notified of
the decision.
In April 1992 the RO received a general statement from the
veteran noting that he disagreed with the RO’s denial letter
of January 1992. He was subsequently issued a statement of
the case listing the issues denied in October 1991 as being
the topics for appellate review. Following the grant of an
extension in filing a substantive appeal by the RO the
veteran filed a substantive appeal in August 1992 and listed
the topics for appellate review as entitlement to service
connection for PTSD and entitlement to service connection for
hypertension, peptic ulcer and alcoholism secondary to PTSD.
An RO rating decision dated in November 1993 confirmed and
continued the denials of the veteran’s claims including on a
secondary basis under 38 C.F.R. § 3.310(a) (1996).
Accordingly, the issues certified by the RO to the Board for
appellate review were those solely mentioned in the veteran’s
substantive appeal.
The Board notes that issues 1 and 2 will be addressed in the
remand portion of the decision.
CONTENTIONS OF APPELLANT ON APPEAL
It is contended by the veteran that he developed alcoholism
and peptic ulcer disease secondary to PTSD.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not submitted
a well-grounded claim for service connection for peptic
ulcer.It is further the decision of the Board that the
veteran has failed to state a claim for entitlement to
service connection for alcoholism upon which relief may be
granted; accordingly, this issue is denied.
FINDINGS OF FACT
1. The claim for service connection for peptic ulcer is not
supported by cognizable evidence showing that the claim is
plausible or capable of substantiation.
2. The record lacks any specific claim by the veteran for
entitlement to service connection for alcoholism until after
October 31, 1990; therefore, the payment of compensation is
prohibited whether the claim is based on a direct service
connection or, under 38 C.F.R. § 3.310(a), on secondary
service connection of a disability proximately due to or the
result of a service-connected condition.
CONCLUSIONS OF LAW
1. The claim for service connection for peptic ulcer is not
well grounded. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1997).
2. The veteran is not eligible for an award of service
connection for alcoholism. 38 U.S.C.A. § 1110, 1131, 5107
(West 1991 and Supp. 1997); 38 C.F.R. § 3.310(a) (1996);
Section 8052 of the Omnibus Budget Reconciliation Act of
1990, Pub. L. No. 101-508, Section 8052, 104 Stat. 1388-351;
VA Office of General Counsel (O.G.C.) precedent opinion 2-97.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Service Connection
Service connection may be established for a disability
resulting from personal injury suffered or disease contracted
in the line of duty or for aggravation of preexisting injury
suffered or disease contracted in the line of duty.
38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 1997).
Regulations also provide that service connection may be
granted for any disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service.
38 C.F.R. § 3.303(d) (1996). Disability which is proximately
due to or the result of a service-connected disease shall be
service connected and considered as part of the original
condition. 38 C.F.R. § 3.310(a) (1996).
If the disability is peptic ulcer and manifested to a
compensable degree within one year following separation from
active duty, service connection may be granted. 38 U.S.C.A.
§§ 1101, 1112, 1113, 1137 (West 1991 & Supp. 1997); 38 C.F.R.
§§ 3.307, 3.309 (1996).
In determining whether an injury or disease was incurred in
or aggravated in service, the evidence in support of the
claim is evaluated based on the places, types and
circumstances of service as shown by the service records, the
official history of each organization in which the veteran
served, the veteran's medical records, and all pertinent
medical and lay evidence. 38 U.S.C.A. § 1154(b) (West 1991 &
Supp. 1997); 38 C.F.R. §§ 3.303(a), 3.304 (1996).
Even where there is a lack of official records to corroborate
that an injury or disease was incurred or aggravated during
service (including a period of combat), VA is required to
accept as sufficient proof of service connection satisfactory
lay or other evidence that an injury or disease was incurred
or aggravated during such period of service, if the evidence
is consistent with the circumstances, conditions, or
hardships of such service. 38 U.S.C.A. § 1154(b) (West
1991); 38 C.F.R. §§ 3.303(a), 3.304 (1996); Collette v.
Brown, 82nd F.3d, 389 (Fed. Cir. 1996).
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet.App. 49 (1990).
Peptic Ulcer
The veteran primarily maintains that he developed a peptic
ulcer secondary to PTSD.
Factual History
A review of the veteran’s service medical records including a
report of an examination in September 1966 for separation
from active duty is completely silent for any mention of a
peptic ulcer disease.
Pertinent post service evidence shows that in November 1981,
the veteran was seen for gastritis secondary to alcoholism.
In October 1983, a VA upper gastrointestinal series
specifically showed no evidence of ulceration or any other
significant abnormality.
A report of a private diagnostic imaging test dated in March
1987 revealed a normal abdomen.
Subsequently dated VA clinical records referring to peptic
ulcer dated from the 1990’s and was by history, only, as
there was no supporting clinical data reflecting present
disability.
Service connection has not been established for any
disability.
Analysis
A comprehensive review of the evidence is silent for any
supporting clinical findings of peptic ulcer disease either
during active duty or following separation from service. As
it presently stands, competent medical evidence of a present
peptic ulcer disability has not been presented. Thus, the
veteran's claim is not well grounded. If the claim is not
well grounded, the Board does not have jurisdiction to
adjudicate the claim. Boeck v. Brown, 6 Vet.App. 14, 17
(1993). Accordingly, the claim for entitlement to service
connection for peptic ulcer is denied. Edenfield v. Brown,
6 Vet.App. 432 (1994).
While the veteran presently maintains that he has a peptic
ulcer that began in service or developed secondary to PTSD,
the Board notes that the Court has held that, while a lay
person is competent to testify as to facts within his own
observation and recollection, such as visible symptoms, a lay
party is not competent to provide probative evidence as to
matters requiring expertise derived from specialized medical
education, training or experience, such as matters relating
to a diagnosis or medical causation. Espiritu v. Derwinski,
2 Vet.App. 492 (1992).
Although the Board considered and denied the appellant's
claim on a ground different from that of the RO, which denied
the claims on the merits, the appellant has not been
prejudiced by their decision. This is because in assuming
that the claims were well grounded, the RO accorded the
veteran greater consideration than his claim, in fact,
warranted under the circumstances. See Bernard v. Brown,
4 Vet.App. 384, 394 (1993).
In light of the implausibility of the veteran's claim and the
failure to meet his initial burden in the adjudication
process, the Board concludes that he has not been prejudiced
by the decision to deny his appeal for service connection for
peptic ulcer.
Alcoholism
The veteran primarily argues that he developed alcoholism
secondary to PTSD.
Factual History
The record shows that an RO rating decision dated in October
1991 denied service connection for alcoholism although not
claimed by the veteran.
The veteran first noted an interest in claiming entitlement
to service connection for alcoholism by letter dated in April
1992.
An RO rating decision dated in November 1993 denied service
connection for alcoholism secondary to PTSD. Service
connection has not been established for any disability.
Medical records on file refer to the presence of alcoholism.
Analysis
The threshold question that must be resolved with regard to
the veteran's claim of entitlement to service connection for
alcoholism is whether he has submitted a legal claim which
might entitle him to the VA benefit he seeks. If his claim
fails because of the absence of legal merit or lack of
entitlement under the law, the claim must be denied as a
matter of law. Sabonis v. Brown, 6 Vet.App. 426 (1994). In
addition to the law and regulations cited above the Board
notes that provisions of 38 C.F.R. § 3.301(d) (1996) provide
that an injury or disease incurred during active military,
naval, or air service shall not be deemed to have been
incurred in line of duty if such injury or disease was a
result of the abuse of alcohol or drugs by the person on
whose service benefits are claimed.
Importantly, a VA Office of General Counsel VAOPGCPREC 2-97
(O.G.C. Prec 2-97) held that Section 8052 of the Omnibus
Budget Reconciliation Act of 1990, Pub. L. No. 101-508,
Section 8052, 104 Stat. 1388-351, prohibits, effective for
claims filed after October 31, 1990, the payment of
compensation for a disability that is a result of the
veteran's own alcohol or drug abuse. The payment of
compensation is prohibited whether the claim is based on a
direct service connection or, under 38 C.F.R. § 3.310(a), on
secondary service connection of a disability proximately due
to or the result of a service-connected condition. Further,
compensation is prohibited regardless of whether compensation
is based on the basis that a service-connected disease or
injury caused the disability or on the basis that a service-
connected disease or injury aggravated the disability.
Because the veteran’s claim of service connection for
alcoholism was received after October 31, 1990, he does not
meet the regulatory requirements for consideration of
entitlement to service connection for alcoholism as the
payment of compensation is prohibited whether the claim is
based on a direct service connection or, under 38 C.F.R.
§ 3.310(a), on secondary service connection of a disability
proximately due to or the result of a service-connected
condition. Accordingly, his claim must be denied as a matter
of law. See Sabonis v. Brown, 6 Vet.App. 426 (1994).
Although the Board considered and denied the appellant's
claim on a ground different from that of the RO, which denied
the claim on the merits, the appellant has not been
prejudiced by their decision. This is because in assuming
that the claim was well grounded, the RO accorded the veteran
greater consideration than his claim, in fact, warranted
under the circumstances. See Bernard v. Brown,
4 Vet.App. 384, 394 (1993).
ORDER
The veteran has not submitted a well-grounded claim of
entitlement to service connection for peptic ulcer disease.
The veteran's claim for entitlement to service connection for
alcoholism is denied.
REMAND
Following a preliminary review of the record, the Board is of
the opinion that the medical evidence currently on file is
insufficient for resolving all of the underlying medical
issues to enable the Board to render a legal determination
with respect to the issues on appeal. Colvin v. Derwinski, 1
Vet.App. 171 (1991).
Specifically, service connection for PTSD requires medical
evidence establishing a clear diagnosis of the condition,
credible supporting evidence that the claimed in-service
stressor actually occurred, and a link, established by
medical evidence, between current symptomatology and the
claimed in-service stressor.
38 C.F.R. § 3.304(f) (1996).
In Cohen v. Brown, 10 Vet.App. 128 (1997), the United States
Court of Veterans Appeals (Court) discussed three requisite
elements for eligibility for PTSD: (1) A current, clear
medical diagnosis of PTSD (presumed to include the adequacy
of the PTSD symptomatology and the sufficiency of a claimed
in-service stressor); (2) credible supporting evidence that
the claimed in-service stressor actually occurred; and (3)
medical evidence of a causal nexus between current
symptomatology and the specific claimed in-service stressor.
In this case VA clinical data reflect the diagnosis of PTSD
based upon the veteran’s claimed stressors of combat duty in
Vietnam.
Unfortunately, a response from the Marine Corps Historical
Center at the Washington Navy Yard in September 1991 was non
responsive to the RO’s request for corroboration of claimed
stressors including the witnessing of the deaths of service
comrades in combat with the enemy. The veteran’s
representative requests that additional development be
undertaken to adequately corroborate the veteran’s claimed
stressors through proper channels.
Importantly, a veteran seeking service connection for PTSD
may not rely on mere service in a combat zone, solely in and
of itself, to support a diagnosis of PTSD. A stressor must
consist of an event during such service "that is outside the
range of usual human experience and that would be markedly
distressing to almost anyone." It is the distressing event,
rather than the mere presence in a "combat zone," which may
constitute a valid stressor for purposes of supporting a
diagnosis of PTSD. Zarycki v. Brown, 6 Vet.App. 91 (1993).
In this regard, the veteran maintains that his stressors
during active duty included seeing fellow servicemen killed
in action, including friends. He also reported that he
observed the deaths of children. Accordingly, in light of VA
clinical data reflecting a diagnosis of PTSD and in order to
establish that the veteran was exposed to a sufficient
stressor, the RO should obtain from the veteran a detailed
account of each incident, including dates and the names of
the deceased service buddies. Thereafter, the RO should
attempt to obtain verification of the veteran's stressors.
Also, in the case of Zarycki v. Brown, the Court set forth
the framework for establishing the presence of a recognizable
stressor, which is the essential prerequisite to support the
diagnosis of PTSD. The Court’s analysis divides into two
major components: The first component involves the evidence
required to demonstrate the existence of an alleged stressful
event; the second involves a determination as to whether the
stressful event is of the quality required to support the
diagnosis of PTSD. Zarycki v. Brown, 6 Vet.App. 91 (1993).
With regard to the first component of the Court's analysis,
under 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304, the
evidence necessary to establish the occurrence of a
recognizable stressor during service to support a claim of
entitlement to service connection for PTSD will vary
depending on whether or not the veteran "engaged in combat
with the enemy." See Hayes v. Brown, 5 Vet.App. 60 (1993).
Whether or not a veteran "engaged in combat with the enemy"
must be determined through recognized military citations or
other service department evidence. In other words, the
claimant's assertions that he "engaged in combat with the
enemy" are not sufficient by themselves, to establish this
fact. The record must first contain recognized military
citations or other supportive evidence to establish that he
"engaged in combat with the enemy." If the determination
with respect to this step is affirmative, then (and only
then) a second step requires that the veteran's lay testimony
regarding claimed stressors must be accepted as conclusive as
to their actual occurrence and no further development or
corroborative evidence will be required, provided that the
veteran's testimony is found to be "satisfactory," e.g.,
credible, and "consistent with the circumstances, conditions,
or hardships of such service." Zarycki at 98.
Moreover, in West v. Brown, 7 Vet.App. 70 (1994), the Court
elaborated on the analysis in Zarycki. In Zarycki, the Court
held that in addition to demonstrating the existence of a
stressor, the facts must also establish that the alleged
stressful event was sufficient to give rise to PTSD. Id. at
98-99. In West, the Court held that the sufficiency of the
stressor is a medical determination, and, therefore,
adjudicators may not render a determination on this point in
the absence of independent medical evidence. The Court also
held in West that a psychiatric examination for the purpose
of establishing the existence of PTSD was inadequate for
rating purposes because the examiners relied, in part, on
events whose existence the Board had rejected.
Upon reviewing Zarycki and West, it appears that in
approaching a claim for service connection for PTSD, the
question of the existence of an event claimed as a
recognizable stressor must be resolved by adjudicatory
personnel. If the adjudicators conclude that the record
establishes the existence of a stressor or stressors, then
and only then, the case should be referred for a medical
examination to determine the sufficiency of the stressor and
as to whether the remaining elements required to support the
diagnosis of PTSD have been met.
In such a referral, the adjudicators should specify to the
examiner(s) precisely what stressors have been accepted as
established by the record, and the medical examiners must be
instructed that only those events may be considered in
determining whether stressors to which the appellant was
exposed during service were of sufficient severity as to have
resulted in current psychiatric symptoms. In other words, if
the adjudicators determine that the existence of an alleged
stressor or stressors in service is not established by the
record, a medical examination to determine whether PTSD due
to service is present would be pointless. Likewise, if the
examiners render a diagnosis of PTSD that is not clearly
based upon stressors in service whose existence the
adjudicators have accepted, the examination would be
inadequate for rating purposes.
Also, since the post service evidence reflects the presence
of elevated blood pressure reading associated with essential
hypertension the RO should obtain from the veteran a detailed
list of all private and VA medical providers of treatment for
essential hypertension dating from following separation from
active duty to the present.
To ensure that the Department of Veterans Affairs (VA) has
met its duty to assist the claimant in developing the facts
pertinent to the claim and to ensure full compliance with due
process requirements, the case is remanded to the RO for the
following development:
1. The RO should contact the veteran and
request that he provide a detailed list
of all providers, VA and non-VA,
inpatient and outpatient, who have
treated him for hypertension since
separation from service. After obtaining
any necessary authorization, the RO
should request and associate with the
claims file legible copies of the
veteran’s complete treatment reports from
all sources identified which have not
previously been secured.
2. The RO should arrange for an
examination of the appellant by a VA
cardiologist for the purpose of
ascertaining the nature, extent of
severity, and etiology of any
hypertension determined to be present.
The claims file and a separate copy of
this remand must be made available to and
reviewed by the examiner prior to and
pursuant to conduction and completion of
the examination. Any further indicated
studies should be conducted. The
examiner must be requested to express and
opinion as to whether it is at least as
likely as not that hypertension, if
determined to be present on examination,
is related to the veteran’s period of
service. Any opinion expressed must be
accompanied by a complete rationale
3. The RO should request from the
veteran a comprehensive statement
containing as much detail as possible
regarding the stressors to which he
alleges he was exposed in service. The
veteran should be asked to provide
specific details of the claimed stressful
events during service, such as dates,
places, detailed descriptions of events,
and identifying information concerning
any other individuals involved in the
events, including their names, ranks,
units of assignment or any other
identifying detail. This should include
the names of any buddies he saw killed or
mutilated. The veteran should be advised
that this information is vitally
necessary to obtain supportive evidence
of the stressful events and that he must
be as specific as possible.
The veteran should also be advised that
he may submit any additional evidence or
argument that he believes is relevant to
either issue on appeal; the RO should
also obtain from the veteran a detailed
list of all private and VA medical
providers of treatment for essential
hypertension dating from following
separation from active duty to the
present. Any obtained data should be
associated with the claims file.
4. The RO should attempt to verify the
claimed stressors through official
channels. Regardless of the veteran's
response, the RO should review the file
and prepare a summary of all the claimed
(and verifiable) stressors if not
previously done. This summary and all
associated documents should be sent to
the Commandant of the Marine Corps,
Headquarters, USMC (Code MMRB), Quantico,
Virginia 22134-0001; and Marine Corps
Historical Center, Building 58,
Washington Navy Yard, Washington, D.C.
20374-0530. They should be requested to
provide any information which might
corroborate the veteran's alleged
stressors.
5. Following the above, the RO must make
a specific determination, based upon the
complete record, with respect to whether
the appellant was exposed to a stressor
or stressors in service, and, if so, the
nature of the specific stressor or
stressors. In rendering this
determination, the attention of the RO is
directed to the cases of Zarycki and
West. In any event, the RO must
specifically render a finding as to
whether the appellant "engaged in combat
with the enemy." If the RO
determines that the record establishes
the existence of a stressor or stressors,
the RO must specify what stressor or
stressors in service it has determined
are established by the record. In
reaching this determination, the RO
should address any credibility questions
raised by the record.
6. If, and only if, the RO determines
that the record establishes the existence
of a stressor or stressors, then the RO
should arrange for the veteran to be
accorded an examination by a board of two
Department of Veterans Affairs (VA)
psychiatrists, if available, who have not
previously examined him to determine the
diagnoses of all psychiatric disorders
that are present. The RO must specify
for the examiners the stressor or
stressors that it has determined are
established by the record and the
examiners must be instructed that only
those events may be considered for the
purpose of determining whether exposure
to a stressor in service has resulted in
current psychiatric symptoms and in
determining whether the nature of the
alleged event is of the quality required
to produce PTSD.
The examination report should reflect
review of pertinent material in the
claims folder. The examiners should
integrate the previous psychiatric
findings and diagnoses with current
findings to obtain an accurate picture of
the nature of the veteran's psychiatric
status. If the diagnosis of PTSD is
deemed appropriate, the examiners should
specify (1) whether each alleged stressor
found to be established by the record by
the RO was sufficient to produce PTSD;
(2) whether the remaining diagnostic
criteria to support the diagnosis of PTSD
have been satisfied; and (3) whether
there is a link between the current
symptomatology and one or more of the in-
service stressors found to be established
by the record by the RO and found to be
sufficient to produce PTSD by the
examiner. The report of examination
should include the complete rationale for
all opinions expressed. Any necessary
special studies or tests should be
undertaken. The claims file and separate
copies of this remand must be made
available to and reviewed by the
examiners prior and pursuant to
conduction and completion of the
examination.
7. Thereafter, the RO should review the
claims file to ensure that all of the
foregoing requested development has been
completed. In particular, the RO should
review the requested examination reports
and required opinions to ensure that they
are responsive to and in complete
compliance with the directives of this
remand and if they are not, the RO should
implement corrective procedures.
8. After undertaking any development
deemed essential in addition to that
specified above, the RO should
readjudicate the issues of entitlement to
service connection for PTSD, and
essential hypertension including as
secondary to PTSD in light of Allen v.
Brown, 7 Vet.App. 439 (1995), if
applicable.
If the benefits sought on appeal are not granted to the
veteran’s satisfaction, the RO should issue a supplemental
statement of the case. A reasonable period of time for a
response should be afforded.
Thereafter, the case should be returned to the Board for
final appellate review, if otherwise in order. By this
remand, the Board intimates no opinion as to any final
outcome warranted. No action is required of the veteran
until he is notified by the RO.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
RONALD R. BOSCH
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1997) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals.
Appellate rights do not attach to those issues addressed in
the remand portion of the Board’s decision, because a remand
is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1996).
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